Andrew Thomas’ Battle Against Spanish-Language DUI Probation Has Cost Us a Half-Million Dollars. But Who's Counting?

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Not coincidentally, the same law firms that were making big bucks handling legal work for Thomas' office are the ones who donated big bucks to his campaigns in 2004 and 2008.

Wilenchik and the lawyers working for him donated $3,100 on the way to that $3.9 million in work, according to a New Times analysis of campaign-finance reports. Burch & Cracchiolo lawyers and their families gave $17,580 to Thomas' campaigns — and earned $3 million in legal fees. Jones Skelton & Hochuli donated $4,855 to Thomas' campaign and won $5.9 million in work since he took office.

There's no record of any contributions from Jones, Day lawyers. It seems more likely that Thomas was just wowed by their résumés.

The lead lawyer on the case, Michael Carvin, is a former Justice Department lawyer who argued before the Florida Supreme Court on behalf of George W. Bush during the 2000 election debacle.

Unfortunately for Carvin, he lost that case, too.

Regardless of Carvin's capabilities, Thomas had a big problem with his lawsuit. Simply put, on its merits, the case stunk.

In press releases and op-ed columns, Thomas claimed that the issue was about a separate court for Spanish speakers. He's tried to make it sound as though Latinos who get charged with DUI get an easier time of it than us poor whiteys.

Really, though, the program Thomas has so desperately tried to stop isn't about getting sentenced for your DUI — it's mainly about getting probation services en español after sentencing.

Here's the deal: Whether you're Anglo or Latino, if you're convicted of drunk driving in Maricopa County Superior Court, your punishment doesn't end with a few days in Tent City. Typically, for a year or two, you have to check in with your probation officer. You have to pee in a cup. You have to go to counseling and admit, time and again, that you're an alcoholic. Screw up any of these steps, and the judge may send you right back to jail.

Under the Spanish DUI program, Spanish-speaking drivers still go to the "real" court to plead guilty. They still go to Tent City and do the time ordered by a "real" judge.

Only after that, when it's time for probation, are they put into the Spanish-language program.

The program, quietly begun in 2002, was borne of frustration. Spanish speakers didn't always seem to "get it," despite treatment and access to probation. And what's the goal of probation, if not to help convicts learn to change their ways?

Now, county leaders tell me, many more of them do. And why not? They're finally getting services, and future check-ins with the judge, in a language they understand.

Only Andrew Thomas could turn a program like that into a civil rights issue!

But forget about all that for a minute. Let's say you agree with Thomas. Let's say the program should be stopped.

In that case, you should be really angry at Andrew Thomas.

And that's because the expensive firm he hired botched the case.

It's Lawyering 101: Any person filing a lawsuit must allege an "injury in fact." I can't just sue Sheriff Joe Arpaio simply because I disagree with his policies. I have to show that those policies have directly injured me.

Clever lawyers know how to find the right co-plaintiffs to make a case. When the Goldwater Institute sued the city of Phoenix over its subsidy of the CityNorth shopping center, for example, it enlisted local businessmen whose shops would suffer from the competing development, even as their tax dollars supported it.

Even as a non-lawyer, it's clear to me what kind of plaintiff Thomas' lawyers needed to pursue the Spanish DUI courts: A non-Spanish-speaking drunk who could show that his probation was tougher than if he were placed in the Spanish program. Or, maybe, a Spanish-speaking drunk who could claim he'd been coerced into "unequal" treatment.

They didn't bother to do that. (Hey, that would take work.) Instead, they just found a pair of motorists who'd been hit by drunk drivers.

They also filed the suit on behalf of Andrew Thomas himself.

Scot Claus, the lawyer for Mariscal, Weeks, which is defending the program, filed a motion pointing out that neither Thomas nor the victims could show actual injury from the program. Thomas' interest is "official," not "personal." And victims, despite their stake in the process, aren't really all that affected by what happens during probation.

Every judge who's examined the case has agreed.

Under law, the judges concluded, Thomas has no standing. (That's based on "well-settled precedent," the appellate judges sniffed.) As for the victims of drunk drivers, the judges found they didn't have standing either. After all, as the appellate panel concluded, the DUI courts "mainly operate to penalize DUI probationers rather than compensate victims."

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Sarah Fenske
Contact: Sarah Fenske